The Right to Spy?

According to the Washington Post, revelations of warrant-less wiretapping by the Bush Administration have provoked dozens of lawsuits against phone companies charged with unlawfully cooperating in violating the privacy of their customers. Verizon has come up with a novel and nervy defense, arguing (with a straight face) that the suit against it should be dismissed because it violates the company’s First Amendment rights to convey information to the government.

This is not a joke. Verizon does not appear to be engaged in self-parody, at least not intentionally. And, indeed, there’s nothing funny about its decision to collaborate with the Administration’s illegal wiretapping and data-mining program, targeting millions of ordinary Americans. There’s nothing constitutional about it either. Verizon essentially acted as an agent of the government, voluntarily; and the government doesn’t have constitutional rights. It has constitutional powers and obligations. The people have rights that restrict the government’s power and help define its obligations.

Verizon’s absurd and cynical defense seems unlikely to prevail. The presiding judge in its case, Federal District Court Judge Vaughn Walker, has already declined to dismiss a similar lawsuit against AT & T. But, as the Washington Post reports, the Bush Administration is seeking to shield Verizon and other companies from liability. Its 2008 intelligence bill includes a provision that would deny people the right to sue the phone companies (or anyone else) for sharing customer information with the government, in order to aid in alleged anti-terrorism initiatives. If this bill were to pass, it would not simply deny individuals and classes of individuals remedies for gross violations of their privacy; it would cut off a promise of judicial inquiry into the government’s spying program. From the Administration’s perspective, what we don’t know can’t hurt them.